City of Vallejo v. Scally

WILBUR, C. J.

On July 11, 1893, the defendant and his wife deeded to the plaintiff, the City of Vallejo, a right of way over certain real property “for any water pipes or mains which may be laid by the City of Vallejo, the party of the second part, and the right to maintain such water pipes, provided that all water pipes and mains shall be laid so that not less than one and one-half feet of ground shall cover such water pipes or mains, and that in no case shall the said water pipes interfere with the proper cultivation of the land of the party of the first part, and also the use of so much land as is necessary in the laying down and maintaining of said pipes, and also the right to enter into and upon said lands for the purpose of laying and maintaining said pipes or mains, and hlso at all times in the future for the purpose of repairing and inspecting and maintaining said pipes or mains, and causing no more damage in entry or entries than cannot be avoided. . . . ” These water-pipes were laid, and thereafter, in 1902, the City of Vallejo constructed a new pipe-line, which rendered unnecessary the continued use of the pipe-line in the said right of way across the defendant’s land. From that time forward the pipe-line laid along the right of way in question was not used by the plaintiff for the conduct of water. In 1918 the City of Vallejo desired to remove the pipe-line laid in the right of way on defendant’s property, and upon finding that the defendant opposed the removal of such pipeline, brought this action in claim and delivery; and under the writ issued herein removed the property and sold it. The defendant claims the property as personal property and appeals from the judgment of the superior court in favor of the plaintiff.

The trial court found as a fact that the plaintiff had abandoned the right of way in question but had not aban

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doned the pipe-line, and that the plaintiff still owned the pipe-line.

The finding that the plaintiff had abandoned the right of way was erroneous. It was shown without controversy that the plaintiff had ceased to use the right of way, but mere nonuser does not destroy an easement created by a deed of grant (Civ. Code, secs. 806, 811, subd. 4;

Gardner